HomeMy WebLinkAboutVI (D1) Adoption of Resolution No. 97-08, authorizing Condemnation of Logan Family Trust Property Agenda 8-19-97
Item VI D 1
RESOLUTION NO. 97-08
A RESOLUTION OF THE CITY OF OCOEE, FLORIDA,
RELATING TO THE ACQUISITION BY EMINENT DOMAIN
OF PROPERTY, INCLUDING BUT NOT LIMITED TO FEE
TITLE, LOCATED AT 370 ENTERPRISE STREET;
PROVIDING FOR SEVERABILITY; PROVIDING AN
EFFECTIVE DATE.
WHEREAS, the City Commission of the City of Ocoee desires
to relocate the City' s Public Works Facility to meet the current
and future needs of the City of Ocoee; and
WHEREAS, the City Commission of the City of Ocoee has the
authority to adopt this Resolution pursuant to Article VIII of the
Constitution of the State of Florida and Chapter 166, Florida
Statutes; and
WHEREAS, the City Commission of the City of Ocoee finds
a public need and necessity exists to acquire, by eminent domain,
the property and its associated improvements described in Exhibit
"A" attached hereto and incorporated herein by reference for the
purpose of relocating and expanding the City' s Public Works
Facility; and
WHEREAS, the City Commission of the City of Ocoee finds
that the acquisition of the said land is necessary for the
provision of public works within Ocoee, and that the acquisition of
the said land therein otherwise to be in the public interest of the
municipality and the people thereof; and
WHEREAS, the interest to be acquired, fee simple title is
more particularly described in Exhibit "A" hereto; and
WHEREAS, the City Commission of the City of Ocoee has
directed the property described in Exhibit "A" hereto to be
surveyed and will locate its line of taking in accordance with
Section 73 . 021 (6) , Florida Statutes (1996) ; and
WHEREAS, all conditions precedent to the exercise of the
power of eminent domain have been satisfied by the City of Ocoee;
and
WHEREAS, if any section, subsection, sentence, clause,
phrase or portion of this Resolution is for any reason held invalid
or unconstitutional by any court of competent jurisdiction, such
portion shall be deemed a separate, distinct and independent
provision and such holding shall not affect the validity of the
remaining portion hereto; and
WHEREAS, this Resolution shall become effective
immediately upon passage and adoption,
THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF OCOEE, FLORIDA, AS FOLLOWS:
Section 1. That the acquisition, by eminent domain, of
the interest indicated in the following parcel for the purpose set
forth above has been found to be, and is found and determined to
be, necessary, in the best interest of the public and for a public
use and purpose, the legal description of said parcel being more
particularly described in Exhibit "A" attached hereto and by this
reference made a part hereof:
OWNER: BLANCHE E. LOGAN, as Trustee of the Logan Family Trust
INTEREST: FEE SIMPLE
BE IT FURTHER RESOLVED that the appropriate officers,
employees and attorneys of the City of Ocoee are authorized to
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proceed forthwith to institute such necessary and proper actions
and proceedings and to comply with all legal requirements as may be
necessary or proper for the acquisition by eminent domain of the
fee simple absolute title in the property described in attached
Exhibit "A" , the specific interest to be acquired therein being
further set forth above and in the attached Exhibit "A. "
PASSED AND ADOPTED this day of August 1997 .
APPROVED:
ATTEST: CITY OF OCOEE, FLORIDA
Jean Grafton, City Clerk S. Scott Vandergrift, Mayor
(SEAL)
FOR USE AND RELIANCE ONLY BY
THE CITY OF OCOEE, FLORIDA.
APPROVED AS TO FORM AND LEGALITY
this day of August 1997 .
FOLEY & LARDNER APPROVED BY THE OCOEE CITY
COMMISSION AT A MEETING
By: HELD ON AUGUST , 1997
City Attorney UNDER AGENDA ITEM NO.
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EXHIBIT A
OWNER: BLANCHE E. LOGAN, as Trustee of the Logan Family Trust
INTEREST: FEE SIMPLE
LEGAL DESCRIPTION
LOT K, WEST ORANGE INDUSTRIAL PARK UNIT TWO,
according to the plat thereof as recorded in
Plat Book 5, Pages 84 and 85, Public Records
of Orange County, Florida
OTHER INTERESTS:
All interests required under Section 73 . 021 (4) , Florida
Statutes.
C:\WPSt\DOCS\MAD\OCOEE 019-WOOD.RES 18/13/47118 EOMI MAD4r
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LAND ACQUISITION AGREEMENT
THIS LAND ACQUISITION AGREEMENT (the "Agreement") is made and entered
into this day of August, 1997, by and between BLANCHE E. LOGAN, as Trustee of the
Logan Family Trust, whose address is 1007 Hickory Hill Road, Ft. Plain, New York 13339
(hereinafter referred to as "Logan") and the CITY OF OCOEE, a Florida municipal
corporation, whose address is 150 North Lakeshore Drive, Ocoee, Florida 32761 (hereinafter
referred to as "the City").
WITNESSETH:
WHEREAS, Logan is the owner of fee simple title to certain real property improved
with a 5,412 square foot office/warehouse building and located in the City of Ocoee, Orange
County, Florida, as more particularly described in Exhibit "A" attached hereto and by this
reference made a part hereof (the "Property"); and
WHEREAS, the City is a Florida municipal corporation which is authorized to exercise
condemnation powers pursuant to Chapter 166, Florida Statutes; and
WHEREAS, the City has a public need and necessity to relocate its existing Public
Works Facility to the Property and in connection therewith needs to acquire from Logan fee
simple title to the Property and its improvements for the relocation and expansion of the City's
Public Works Facility; and
WHEREAS, the City has advised Logan that it intends to use its power of eminent
domain to condemn its required interests in the Property; and
WHEREAS, the City's appraiser has reached a conclusion of value of $358,000.00 for
the Property; and
WHEREAS, Logan has advised the City that it will not contest the eminent domain
proceeding provided the City pay Logan the sum of$375,000.00 in complete satisfaction for the
taking of the Property; and
NOW, THEREFORE, in consideration of the promises and other good and valuable
considerations exchanged between the parties hereto, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agrees as follows:
1. The above recitals are true and correct and are incorporated herein by reference.
2. Upon execution of this Agreement by both parties, the City will initiate an
eminent domain proceeding to acquire the Property. This action will be prosecuted pursuant to
Chapter 74, Florida Statutes. Logan agrees to waive service of process by a sheriff.
3. As its good faith estimate of value, the City will file a Declaration of Taking in
the amount of$375,000.00 and will deposit that amount in the Court Registry within twenty (20)
days of the entry of the Order of Taking.
4. Logan agrees not to challenge the City's public need and necessity for the taking
nor seek compensation for the value of the Property taken above the $375,000.00 amount set
forth in Paragraph 3 above.
5. Each party shall bear its own attorneys' fees and costs in connection with this
Agreement and the eminent domain action to be filed by the City. Logan agrees not to seek
reimbursement from the City for any costs incurred by Logan for appraisals, attorneys, any
expert witnesses or consultants, environmental clean-up, and other matters.
6. Logan acknowledges that the funds deposited in the Court Registry may be subject
to apportionment by persons or entities claiming an interest in the Property and agrees that any
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apportionment proceedings related to the entitlement to funds deposited by the City shall be the
responsibility of Logan.
7. Logan shall be responsible for any and all claims which may be made by Century
21 West Properties and/or Dick Trail ("the Broker") for a brokerage commission in connection
with the acquisition and condemnation of the Property by the City. It is agreed that the City
shall have no obligation whatsoever to the Broker. Logan and the City represent to each other
that, except for the Broker, they are not aware of any person or entity which would be entitled
to a commission, compensation, or brokerage fee in connection with the acquisition and
condemnation of the Property by the City. Logan agrees to indemnify and hold the City
harmless from any claim for a commission, fees or other compensation which may be claimed
to be due through Logan or pursuant to the acts of Logan or Logan's representatives.
Additionally, Logan covenants and agrees to indemnify the City for damages, court costs and
reasonable attorneys' fees and paralegal fees, at both at the trial and appellate levels, incurred
as a result of any such claim.
8. The City shall have the right to personally or through agents, employees and
independent contractors, to enter upon the Property for the purposes of, at its own expense,
inspecting the Property, obtaining surveys, making soil tests, test borings and conducting such
other investigations of the Property as the City deems appropriate. To the extent permitted by
law, the City will indemnify and hold Logan harmless from and against all loss, liability, costs,
claims, demands, damages, actions, causes of action, suits and expenses arising out of, related
to or caused by the City, its agents, employees and independent contractors in the exercise of
any of the City's rights under this paragraph.
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9. Within thirty (30) days from the date of the filing of the condemnation action by
the City, Logan will execute and deliver, in escrow, to Foley & Lardner a complete assignment
of all of her rights and privileges with respect to the Property under the Florida Department of
Environmental Protection's Florida Petroleum Liability Insurance and Restoration Program
(FDLIRP). Such assignment shall be in a form acceptable to the City. Further, such assignment
shall be held in escrow by Foley & Lardner who shall be authorized to release the assignment
to the City at such time as the City deposits the sum of $375,000.00 into the Court Registry as
provided in Paragraph 3 hereof. Within such 30-day time frame, Logan will provide the City
with satisfactory documentation that the FDLIRP deductible amount of $10,000.00 has been
satisfied. Further, Logan will be responsible to pay in full Universal Engineering Services, Inc.
("Universal") for all work performed in connection with the Property which is not paid for by
the State of Florida under the FDLIRP and, in this regard, shall deliver to the City a release
from Universal of any claim of lien which may be held or claimed by Universal against the
Property, such release to be provided within thirty (30) days from the date of filing of the
eminent domain proceeding.
10. The City has disclosed to Logan that it intends to obtain owner's title insurance
with respect to the title to the Property to be obtained by the City in the eminent domain
proceeding. Logan agrees to pay to the City the cost of such owner's title insurance which is
$1,950.00 based upon the minimum promulgated rate. This amount will be paid by Logan to
the City contemporaneous with her receipt of any portion of the funds paid by the City into the
Court Registry as provided in Paragraph 3 hereof.
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11. The City will obtain a boundary survey of the Property at the City's sole cost and
expense, and may elect to obtain a Phase I Environmental Assessment, also at the City's
expense.
12. Within five (5) days from the date of this Agreement, Logan shall provide the
City with a copy of the Logan Family Trust which may be recorded by the City if required in
order to obtain title insurance.
13. Notwithstanding any provision contained in this Agreement to the contrary, the
City may, in its sole and absolute discretion, elect at any time prior to the issuance of the Order
of Taking to dismiss the eminent domain proceedings. In the event the City so elects to dismiss
the eminent domain proceedings, then neither party shall have any claim against the other for
any costs and expenses, including but not limited to, attorneys' fees, appraisal fees, expert
witness fees, and brokerage fees incurred in connection with this Agreement and the proposed
condemnation and/or acquisition of the Property by the City.
14. Logan agrees, upon request of the City, to execute and deliver to the City such
documents and instruments in form and substance reasonably necessary to confirm and/or
effectuate the obligations of Logan under this Agreement and the consummation of the
acquisition of the Property by the City.
15. This Agreement shall survive the acquisition of the Property by the City.
16. This Agreement shall be enforceable by an action for specific performance. In
the event that either party finds it necessary to bring such an action against the other party to
enforce this Agreement or because of a breach thereof by the other party, the prevailing party
shall be entitled to recover from the other party its reasonable attorneys' fees, paralegal fees and
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costs incurred in connection therewith, at both trial and appellate levels, including bankruptcy
proceedings.
17. This Agreement embodies and constitutes the entire understandings of Logan and
the City with respect to the Property and all prior and contemporaneous agreements,
understandings, representations and statements, oral or written, are merged into this Agreement.
This Agreement may only be waived, modified, amended, discharged or terminated by a written
agreement between Logan and the City.
18. This Agreement shall be construed and interpreted in accordance with the laws
of the State of Florida.
19. This Agreement shall be binding upon and inure to the benefit of the parties
hereto, their respective legal representatives, successors, heirs and assigns.
20. Time is of the essence for this Agreement and in the performance of all
conditions, covenants, requirements, obligations and warranties to be performed or satisfied by
the parties hereto.
21. The Effective Date of this Agreement shall be the date that it is executed by the
City and such date shall be inserted on the front page of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement, to
become effective as of the date and year first above written.
Signed, sealed and delivered SELLER:
in prese ce of:
%/9 ? BLANCHE E. LOG , ally
�.� /L-'` yC jc L and as Trustee of the Logan Fa Trust
Executed on: 6( y , 1997
CITY:
CITY OF OCOEE, a Florida municipal
corporation
By:
S. Scott Vandergrift, Mayor
ATTEST:
By:
Jean Grafton, City Clerk
[AFFIX SEAL]
For use and reliance only by Executed on: , 1997
the City of Ocoee, Florida.
Approved as to form and legality
this _ day of , 1997.
FOLEY & LARDNER APPROVED BY THE OCOEE CITY
COMMISSION AT A MEETING HELD
ON , 1997
By: UNDER AGENDA ITEM NO.
City Attorney
C:mP5I\DOGS\OCOEE\LANDACQS.AGM 18/4/97I 18W015I PER:dp
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EXHIBIT A
LEGAL DESCRIPTION
LOT K, WEST ORANGE INDUSTRIAL PARK UNIT TWO,
according to the plat thereof as recorded in
Plat Book 5 , Pages 84 and 85 , Public Records
of Orange County, Florida
' OLEY & LARDNEF
ATTOR NEYS AT LAW
CHICAGO POST OFFICE BOX 2193 SAN DIEGO
JACKSONVILLE ORLANDO, FLORIDA 32802-2193 SAN FRANCISCO
LOS ANGELES 111 NORTH ORANGE AVENUE, SUITE 1800 TALLAHASSEE
MADISON ORLANDO, FLORIDA 32801-2386 TAMPA
MILWAUKEE TELEPHONE(407)423-7656 WASHINGTON D.C.
SACRAMENTO FACSIMILE(407)648-1743 WEST PALM BEACH
WRITER'S DIRECT LINE
MEMORANDUM
TO: Ellis Shapiro, Richard Corwin, Jim Shim
THROUGH: Paul E. Rosenthal, Esq., City Attorney
FROM: Thomas K. Maurer 1
DATE: June 4, 1997
RE: Proposed Public Works Facility - 307 Enterprise Street - Environmental
I have reviewed the environmental reports and documents provided by the City
regarding the property located at 307 Enterprise Street. For the reasons set forth below, I would
recommend that the City obtain an independent Phase I Environmental Assessment. The existing
petroleum contamination is eligible for funding by the Florida Department of Environmental
Protection (FDEP). I would recommend that the Buyer's environmental consultant be contacted
in order to determine whether or not sufficient investigation to the extent of contamination has
been performed in order to provide the cost estimate for total clean-up of the contamination.
The City may want to consider requiring an escrow or other protection from the Buyer to cover
any costs which may not be covered by the FDEP program. More detailed discussion of these
issues follows:
GENERAL ENVIRONMENTAL ASSESSMENT
It is the usual and customary practice to perform a Phase I Environmental
Assessment prior to the purchase of any commercial property. There are defenses to liability
under both Florida and federal law which will not apply unless a buyer can demonstrate that they
have performed a diligent review of the environmental condition of the property. The usual way
to accomplish this review is to perform a Phase I Environmental Assessment which meets ASTM
standards. Although the Seller had such an assessment performed in 1994, a buyer would not
typically rely on a report prepared for another party, nor a report which is three years old.
While it is unlikely that any additional environmental conditions will be uncovered, it would be
appropriate to perform an environmental assessment in order to make sure that no new
conditions of environmental concern exist and to preserve the City's right to the innocent
ESTABLISHED 1 8 4 2
A MEMBER OF GLOBALEX WITH MEMBER OFFICES IN BERLIN, BRUSSELS,DRESDEN,FRANKFURT,LONDON, PARIS,SINGAPORE,STUTTGART AND TAIPEI
purchaser defenses under the environmental statutes. The cost of a Phase I Environmental
Assessment is in the neighborhood of $2,000.00.
PETROLEUM CONTAMINATION
Petroleum contamination has been identified at the facility. This contamination
has been determined eligible for funding from the Inland Protection Trust Fund (IPTF)
administered by FDEP. The IPTF is funded by a tax on petroleum products and all costs of
assessment and remediation of petroleum contamination less a $10,000 deductible, up to a cap
of $300,000, will be paid from the IPTF. Pursuant to changes the statute in 1996, sites are
cleaned up on a prior approval basis. This means that a site will not be cleaned up until such
time as its priority ranking score is reached. When a site's priority ranking is reached, the
responsible party submits a plan to FDEP for approval. Upon approval of the plan the work is
performed and is promptly paid from the IPTF. For low scoring sites this means that there may
be a wait of many years before actual site clean-up begins. However, the facility at 307
Enterprise Street has received a score of 72. Currently, FDEP is approving assessment and
clean-up for sites with a score higher than 65. This means that assessment of the extent of
contamination and clean-up at this site is proceeding and will be funded now.
The last documents in the City's file regarding the status of work at the site
indicate that a initial assessment of the extent of contamination was completed in October 1996.
I understand from discussions with Richard Corwin that a full Contamination Assessment Report _
(CAR) has been submitted, but I have not reviewed it at this time. The CAR should contain the
soil and groundwater testing necessary to determine the vertical and horizontal extent of the
petroleum contamination. Once FDEP approves the CAR, a remediation plan, including a cost
estimate, will be submitted to FDEP for approval.
There is a cap of $300,000 under the particular program for which this site is
eligible. The vast majority of petroleum clean-up sites are completed for less than $300,000.
However, a complete and accurate cost estimate for clean-up usually cannot be provided until
the vertical and horizontal extent of petroleum contamination has been identified. It is possible
that Universal Engineering, the Buyer's environmental consultant, has performed sufficient
amount of testing in order to provide a cost estimate for the total site clean-up. However, such
an estimate may have to wait until FDEP approval of the CAR is obtained.
The Florida Statutes establishing the petroleum clean-up programs also provide
a bar against a lawsuit by any party seeking to require clean-up of an eligible site in any manner
other than that provided for under the program. This means that the risk of liability for
contamination at the site is limited. The greatest risk would appear to be the possibility of cost
at the site exceeding the $300,000 cap.
A second concern which must be examined when dealing with contamination is
whether or not the contamination would interfere with the use and enjoyment of the property.
FDEP has identified over 18,000 contaminated sites in Florida and over 5,000 of these sites have
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been cleaned up. It has been very rare for any of these sites to interfere with the planned use
of the property. So long as there are no activities planned which would involve withdrawing
groundwater from the_contaminated zone, disturbing contaminated soil, or changing the direction
of groundwater flow, it is unlikely that the presence of contamination would interfere with the
use of the property. This is essentially the position reflected in a letter to Richard Corwin from
FDEP. Any specific plans for development or renovation of the property should be discussed
with Orange County to make sure that there would be no concern regarding the planned use of
the property.
I would recommend that we ask the Buyer to have their consultant provide us with
a cost estimate for the completion of all assessment and clean-up activities at the site. If such
an estimate can be provided, the City may want to have its own environmental consultant review
and verify the estimate. If the estimate exceeds the $300,000 cap, an escrow or other financial
mechanism to provide for this cost should be requested from the Buyer. If a cost estimate
cannot be provided at this time, the City could consider an escrow of some significant amount,
(for example $50,000), to provide a cushion for any possible overrun beyond the $300,000 cap.
Please let me know if you have any additional questions concerning this matter.
/jh
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06/09/97 15:09 '04074234410 ERIC EREBILL 2 002/003
•
Department of
laismomagmar
.} Environmental Protection
Twin Towers Office Buidrng [ .- ! ; ; ,f�—
Lawton Chiles 2600 Blair Stone Road i i.. •�
Virginia B.Wetherell
Governor Tallahassee, Florida 32399-2400 Secretary
1997
June 3 , 1997
UNIVE� ,^ (�iENCES
Ms . Inga Logan
Former Ron Allen Trucking
370 Enterprise Street
Ocoee, Florida 34761-3002
RE: Former Ron Allen Trucking
370 Enterprise Street
Ocoee, Orange County
FDEP Facility ID# 489101299
Dear Ms. Logan:
The contamination cleanup at this site has been approved for
funding under the Department's Florida Petroleum Liability
Insurance and Restoration Program (FPLIRP) for the December 13 ,
1994 discharge. Review of our records has indicated that the
FPLIRP required deductibles for the December 13, 1994 discharge
has. not been•!collected--by. the: Department.
Prior to the initiation of the preapproval program, FPLIRP
deductibles were typically subtracted from the amount requested
in the first reimbursement application following the discharge
eligibility determination. In the preapproval program, the scope
of work and the costs associated with performing that work are
agreed upon before the work is performed. The consulting firm
that performs the work is paid directly by the Department when
the work is completed. Site owners and/or other responsible
parties are, no longer asked to fund the cleanup effort and then
wait for reimbursement. However, site owners and/or other
responsible Parties are still responsible to pay the applicable
deductible associated with each site's funding program.
The FPLIRP deductible amount of $10, 000. 00 needs to be paid
to the Department in order for this site to maintain its funding
eligibility.
Please remit the amount of the deductible with the enclosed
invoice to . the.•following:" address.:
VC.+C r\ ansan r�Manage ' bliAiir hr�gw NMamYAVIfstio<twiI
•
P+4ttse art iacyciadixiPr r•,:; F.
dedtict.doo • ;:4�: 5/71'97 •
06/09/97 15:09 a4074"4410 ERIC KREBILL Z 003/003
_ Ms. Logan
June 3 , 1997 •
Page two
Florida Department of Environmental Protection
Division of Waste Management
Bureau of Petroleum Storage Systems
Mail Station 3070
Tallahassee, Florida 32399-3070
Please make sure to attach a brief letter with your check
that clearly indicates that the remittance is for the FPLIRP
deductible associated with Former Ron Allen Trucking, FDEP
Facility ID* 489101299. Please copy me on the attached letter.
If you should have any questions, please contact me at
904/488-3935 and at the letterhead address, Mail Station 4530.
Sin erely,
G R. Prime
ironmental Specialist II
Petroleum Cleanup' Section 3
Bureau of Petroleum Storage Systems
/grp
cc: m'lc Krebill, Universal Engineering Sciences
Deborah Helle, FDEP Central District Office
Judy Powell, Accountant I
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